Unequal Division of Net Family Property

Unequal Division of Net Family Property

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When married spouses separate, s.5(1) of the Family Law Act (“FLA”) provides that there will be an equalization payment made from the spouse with the greater net family property to the spouse with the lesser net family property (see our blog post here for an introduction to how net family property and equalization work).

To briefly recap, the value of this equalization payment under s. 5(1) of the FLA is described as “one-half [the] difference between [the spouses]”.  Meaning the spouse with the greater net family property pays 50% of the difference to the spouse with the lesser net family property.

However, this equalization payment can be varied should the court find that the payment would be unconscionable.  S. 5(6) of the FLA provides us with the following criteria that could result in a varied equalization payment amount:

 

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable (emphasis ours), having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

 

The purpose for why this is allowed is described in s. 5(7) of the FLA:

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

What we can see in the language in s. 5(7) is that an unequal equalization payment is not something to be granted easily.  This will really only apply rarely and then only after carefully assessing the specific circumstances of each party to see if an unequal equalization payment would be appropriate.

Unconscionable

So what does unconscionable actually mean here? The court in Serra v Serra evaluated this term and provides us with the following guidance:

[T]he threshold of “unconscionability” under s. 5(6) is exceptionally high (emphasis ours). The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”[1] (emphasis ours).

Further caselaw helps to clarify the point by stating the following:

  1. “It is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else”[2]
  2. “The term “shocking” indicates a situation or circumstances such as to shock the conscience where the party seeking relief has been put in a position so unfair as to cry out for redress. Accordingly, the word “unconscionable” must mean more than a mere consideration of “fairness” or “reasonableness”[3]
  3. “The conduct must relate to the accumulation of the net family property in some way. Even if the evidence established that the husband sexually assaulted the wife on the day before they separated, as alleged, the court could not impose a financial punishment on him by varying his share of the net family property, as that conduct was not related in any way to the property that the parties had on the date of separation”[4]

This helps us to understand the extreme level the financial circumstances of a spouse must reach before the unequal equalization payment will be considered by courts.  As stated in the third bullet point above, if the conduct of a spouse does not affect the financial situation of a spouse, that alone cannot affect a variation of an equalization payment.

If you are going through a separation right now, or are looking for information regarding separation, contact the professionals at Rabideau Law to see how we may be able to assist you.

This information was provided for information purposes only and is not to be construed as legal advice.

 

 

[1] Serra v. Serra, 2009 ONCA 105, 61 R.F.L.(6th) 1, var’g. 2007 CanLII 2809, 36 R.F.L.(6th) 66 (S.C.J.), Blair J.A. stated (at para. 47):

[2] Cosentino v. Cosentino, 2015 ONSC 271 (at para. 46)

[3] Heal v. Heal, 1998 CanLII 14896, 43 R.F.L.(4th) 88 (Ont.Gen.Div.).

[4] N.R.I.H. v. M.G.S.H. sub nom. Hamdy v. Hamdy, 2015 ONSC 3277 (at para. 291).

Child Support - Undue Hardship

Child Support: Undue Hardship

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As discussed in the previous blog on child support, child support is generally seen as a non-negotiable support payment in the eyes of the court.  However, there are ways to alter child support payments.  This can be done through either a shared custody arrangement (see our blog post here), or by proving undue hardship.

S. 10(1) of the Federal Child Support Guidelines (the “FCSG”) provides an outline for how to approach an argument for undue hardship and also provides that either spouse may apply for it.  Just remember that whoever makes the claim has the onus of proving the claim (see caselaw Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.)).

S. 10(2) of the FCSG provides the circumstances that courts will recognize as causing undue hardship:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

As can be seen, the language here demonstrates that there must be a SIGNIFICANT type of burden placed on the spouse advancing the argument for undue hardship.  Even if the court agrees that there is undue hardship, they must still factor that with s. 10(3) of the FCSG which provides that the application must be denied if the court is of the opinion that the household of the spouse claiming the undue hardship is of a higher standard of living than the household of the other spouse.  It is not just hardship that must be proved, but UNDUE hardship (see Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)).

This means that all persons who reside with the spouse would likely have to be involved in the investigation as to whether there is an undue hardship; meaning their financial information would likely have to be produced.

See below for examples from caselaw regarding undue hardship:

Undue Hardship established:

Trebilcock v. Trebilcock, 2012 ONCA 452

  • Father appealed an order for lump sum child support of $150,000 – this support was based on his income of $75,000 which the Father contested
  • Mother made a claim for undue hardship and was successful
    • Mother was disabled, raising the children, children were reaching post-secondary education age, and she was on social assistance
    • Mother also received no support from the father since 2001
    • Father had received a large inheritance and dissipated a portion of his assets

Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),

  • split custody between the parents
  • mother made claim for undue hardship
    • she was unemployed, blind, and her expenses exceeded her income
    • additionally, it was expected that her rent would increase in the near future

Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),

  • father applied for variation of child support
  • each party had one child in their care
  • the Child Support Guidelines (“CSG”) indicated that the mother should receive $60 instead of the $200 she was receiving
  • mother claimed undue hardship for daughter who was living with her
  • father didn’t see daughter often, mother had to take unpaid time from work due to daughter’s health problems
  • court found that mother would suffer undue hardship if only paid the guideline amount as the standard of living in her household was lower than that of the father’s

 

Undue Hardship NOT established

Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)

  • mother had custody of both daughters
  • sought child support higher than CSG provided due to undue hardship or in alternative an order for spousal support
  • Her gross income was $66,640 and father’s was $127,286
  • Court rejected her claim arguing that CSG amounts were not to be lightly interfered with
  • No allegation that children were not properly clothed or fed, no physical or emotional problems requiring extra time and expense to mother
  • Disparity in household income existed, but it was not significant
  • Mother did receive spousal support

Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)

  • father applied to have child support varied on basis that bother children were no longer dependent
  • mother argued she would suffer undue hardship if order was varied
  • claimed she would have to sell home, her costs were increased due to father’s failure to exercise access and that children would suffer
  • court ruled that although there was hardship, it was not UNDUE hardship
  • ultimately the court reasoned that they would be awarding her spousal support instead of child support

Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

  • Father sought a reduction in child support since he had just started on long-term disability benefits
  • Mother had no employment income
  • court ruled that since the CSG does not take into account the recipients income, that fact alone was not enough to create undue hardship
  • court found there were no circumstances that made the Mother’s situation exceptional in this case

 

Caselaw

  1. Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.).
  2. Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)
  3. Trebilcock v. Trebilcock, 2012 ONCA 452
  4. Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),
  5. Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),
  6. Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)
  7. Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)
  8. Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Breakdown of Marriage: Physical and Mental Cruelty

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Separation alone is difficult to deal with.  When the issues concerning adultery, physical and mental cruelty become involved, it can make a difficult situation that much worse.  If these concerns are a part of the separation between two spouses, courts here in Canada will implement a “no fault” regime.  This means that when a person’s rights are being determined in regards to: the children, child or spousal support, and property division, the fault of one party causing the breakdown of the marriage is usually not taken into consideration.

Courts will approach divorce in an objective manner; this generally means they do not look at the reasons for separation, and they won’t punish a spouse for their role in the breakdown of the marriage.

There are three reasons why a divorce can be granted:

  1. Separation;
  2. Adultery; and
  3. Physical and Mental Cruelty.

This blog post will focus on the third ground for divorce: physical and mental cruelty.  See our previous blog post for more information on the first ground of separation.

One thing to note here is that when seeking a divorce under the ground of separation, you have to wait at least one year.  An advantage of claiming a divorce under physical and mental cruelty is that you do not have to wait one year post separation in order to get your divorce.

Physical or Mental cruelty

If a party is claiming one of these grounds for divorce, they will have the onus of proving it on a balance of probabilities.  Trying to prove domestic violence in this regard can be difficult, costly, time consuming, and can be very emotionally draining.

Catherine Christopher in The Law of Domestic Conflict in Canada, identifies 4 different types of domestic violence:

  1. Physical
    1. Might be most readily identifiable – bruise patterns, fractured bones;
    2. Might be defined as including any kind of unwanted application of force, the use of which is intended to harm, threaten, or intimidate by one partner against another partner in an intimate relationship;
    3. Acts can include:
      1. pushing, pinching, slapping, hitting, punching, hair pulling, twisting limbs, restraint of movement and choking – this list is not exhaustive.
  2. Emotional
    1. Understood to be an act of unkindness or cruelty by one person calculated to threaten, intimidate, diminish or belittle another person in an intimate relationship;
    2. Can include:
      1. name-calling, yelling, screaming, belittlement of one’s body and ability, threats to harm partner, children, friends, family members or pets; physical abuse of pets; destruction of property including items of clothing or precious gifts; threats of suicide; acts of attempted suicide, particularly in the presence of children or a partner.
  3. Sexual
    1. Criminal code defines sexual assault and related offences in fairly specific terms;
    2. Possible to define certain acts as sexual abuse within confines of a relationship;
    3. Acts can include:
      1. enforcing a dress code, bringing unwanted pornography into home, forcing an unwilling partner to watch pornography, forcing unwanted sexual acts, forcing unwanted sexual acts with others, belittling sexual performance and body type, withdrawing sexual involvement or affection, and making unwanted overtures in public;
    4. Sexual abuse may also be said to be emotionally abusive conduct.
  4. Financial
    1. Can be defined as unwanted aggression, control and/or domination committed by one partner against another involving money or financial resources;
    2. If one partner controls all of the financial resources to exclusion of other against their will, then abusive element emerges;
    3. Acts can include:
      1. failing to share money, purchasing all food and clothing, limiting or restricting entirely all access to financial resources or to information regarding financial resources, failing to provide essentials such as food, clothing and medical treatment.

In order for the physical and mental cruelty to be used as a reason for divorce, it must be “of such kind as to render intolerable the continued cohabitation of the spouses.”  See the language in s. 8(2)(b)(ii) of the Divorce Act.  This is a high bar to meet and will require diligent evidence production in order to satisfy the court that the abuse meets that bar.

Should the court find that the abuse does meet that high bar, the abuse does not impact the amount of money paid in spousal or child support.  However, this conduct by one spouse can affect custody and access arrangements as is discussed in our blog post here.

Sources:

  1. Catherine Christopher, The Law of Domestic Conflict in Canada, vol. 1 (Toronto: Thomson, Carswell, looseleaf – updated to 2016, Release 2) (at 1-12.1).

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

LGBTQ Parents and Custody and Access

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One fear that some parents may have is whether their LGBTQ status might affect their rights when it comes to Custody and Access.  Thankfully, this is not in and of itself a ground to refuse custody or access to a parent as the case law below will demonstrate.

Custody

As mentioned in our last post regarding conduct that can affect custody or access, what courts will want to see is whether the conduct of the parent impacts the best interest of the child.

What courts will do is consider a parent’s LGBTQ orientation among other factors to make a determination about a person’s ability to parent.  They will look at whether that orientation actually affects the healthy development of the child.  The Courts in Bezaire v Bezaire had the following to say at para 18 of the decision:

“In my view homosexuality, either as a tendency, a proclivity or a practised way of life is not in itself alone a ground for refusing custody to the parent with respect to whom such evidence is given. The question is and must always be what effect upon the welfare of the children that aspect of the parent’s make up and lifestyle has, and it will therefore be a question of evidence in that very case as to whether what has been shown to exist has or may tend to have effects adverse to the welfare of the children.”

In addition to this, the court in Re K states the following:

“There is, in short, no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than families with homosexual parents.”

What we can see from this is that courts are very clear in stating that sexual orientation alone is no ground in and of itself that negatively impacts on a person’s ability to parent their children, meaning that LGBTQ parents are recognized as equally capable as heterosexual parents when it comes to decisions regarding custody.

Access

The same principles apply when courts make decisions regarding access to children.  Again, the courts are going to make a determination on whether a parent’s LGBTQ orientation, as well as other facts, affects the child’s best interest.

For example, the courts in Templeman v Templeman found that an openly gay lifestyle was not a reason in and of itself to restrict access or require that it be supervised.  In Templeman, psychiatric evidence was produced that showed conclusively that the father had a strong loving bond with his children, and that his gay lifestyle posed no risks in harming his children.

Caselaw

  1. Bezaire Bezaire (1980), 20 R.F.L.(2d) 358 (Ont.C.A.);
  2. Re K (1995), 15 R.F.L. (4th) 129 (Prov.Div.):
  3. Templeman v. Templeman, [1986] W.D.F.L. 233, 2 A.C.W.S.(3d) 294 (B.C.S.C., Dec. 22, 1986).

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Bill C-45 and Real Estate Presentation

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In response to Bill C-45 recently taking effect, Geoff Rabideau has taken some time to put together a presentation outlining what we do currently know about the laws surrounding Cannabis in Ontario, and what some of the potential changes may be that we will notice in respect to real estate.

To view/download the PDF, please click below:

Bill C-45 and Real Estate_brokers

Please keep in mind that this is being provided for informational purposes only and is not to be taken as legal advice, and that the specifics of the Cannabis Act will continue to evolve in the coming months and years in response to the outcome the law has on Canada and Ontario.

 

Past Conduct of Parents in Determining Custody and Access

Can the Past Conduct of a Parent be Used to Determine Custody and Access?

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I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.

Let’s look a little closer at what this actually means.

First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).

24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).

Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).

The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.

Let’s take adultery as an example.  Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage.  What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child.  Therefore it was not a relevant consideration when determining custody or access.


Relevant Parental Conduct

When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access.  These initial relevant considerations could include, but is not limited to:

  1. Who has been making the decisions for the child?
  2. How often does the child see each parent currently?
  3. Who prepares the food and clothing for the child?
  4. Who arranges after school activities etc?

Adjusting Terms of Access

After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.

To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:

  1. the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
  2. the non-custodial parent’s punctuality, attendance and behaviour on access visits;
  3. the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
  4. the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
  5. the non-custodial parent’s sensitivity to time limitations on the visit.

Sample Case T.(R.R.) v. T.(G.)

In T.(R.R.) v. T.(G.),  the father was denied access because he:

  1. Repeatedly showed up for visits drunk;
  2. Left multiple threatening messages on the mother’s answering machine;
  3. Acted inappropriately during his access visits;
  4. The children didn’t want to visit with the father; and
  5. The children were in a better emotional state when they did not see the father.

Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.

As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child.  See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.

 

Case Citations:

  1. Somerville v. Somerville, 2007 ONCA 210, [2007] O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
  2. (R.R.) v. T.(G.), [1994] O.J. No. 2453
  3. Montgomery v. Montgomery, [1992] O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]

 

Legal Disclaimer that this is information only and not to be construed as legal advice.

Is Probate really necessary? Not if it is the “First Dealing” of the Property since Conversion

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Several years ago the Province of Ontario changed from the Registry System to the Land Titles Conversion Qualified (LTCQ) system for the registration and searching of real estate title (ownership).  The Registry Systems was a paper system, whereas, the LTCQ system is an electronic system, which provides efficiency in searching and registering title and provides assurances that the title registered is valid title, due to the fact that there is no concern of duplicate entries, as was prevelant in the paper Registry System.

If a transfer or sale of a property is being completed and a deceased party is registered on title it is important to know whether or not probate is required to be completed, as the cost savings from not having to complete probate can be substantial.

It is important to know that probate does not have to be completed on a property where it is the first dealing of the property since it has been converted from the Registry System to LTCQ.

The First Dealings Exemption is available in instances where the deceased party on title acquired the property while it was registered under the Registry System and continued to be registered on title, uninterrupted, after it was converted to LTCQ. This First Dealings Exemption would continue to apply as long as the deceased did not transfer their ownship of the property, so the fact that they registerd and discharged mortgages after they acquired the property would have no effect.

The First Dealings Exemption would continue to apply in the instance that a joint tenant, who was registered on title previously with the recently deceased, passes away and a survivorship application was completed to transfer the title solely into the ownerhsip of the recently deceased. Lastly, transfers of title between spouses due to the breakdown of the marriage would not result in the First Dealings Exemption being lost. However, if there is no valid Will and Last Testament then such discrepancy will vitiate the usage of the First Dealings Exemption.

The Divorce Process

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Should you determine that your relationship is over and that you wish to get divorced, you will need to follow the process outlined below in order to officially terminate your marriage.  If you are unsure about the nature of your relationship, take a look at our previous blog posts regarding Common law vs. Marriage and Separation and Divorce for a background regarding what is required in order to be eligible to get divorced.

Generally, the reason a divorce is granted is because two married persons have been separated for a year. However, you do not need to actually wait for a year of being separate before you can begin the divorce process. You will just have to wait until the year is up before a judge can grant you a Divorce Order. Be aware that if you reconcile the relationship for more than 90 days you will have to start the year separation period over again- (see separation and divorce article for more information). If you are getting divorced as a result of adultery or physical or mental abuse, then you do not need to wait for a year for the Divorce Order to be granted.  However, you will need to provide documentation or other evidence to support your claim for adultery, physical or mental abuse as a reason for breakdown of marriage.

Both spouses do not need to agree to the divorce, either spouse can apply for it. However, if one spouse brings the application for divorce, the other spouse has the ability to contest it, see s. 8(1) of the Divorce Act (“DA”) and Rules 8 and 10 of the Family Law Rules .

One final thing to be mindful of is that judges will not grant a divorce if they believe that no reasonable arrangements have been made to support the children of the marriage, see s. 11(1)(b) of the DA.

Can I get Divorced if I’m not a Canadian Citizen?

Yes. Canadian citizenship is not a requirement for divorce in Canada. However, it is required that you or your spouse have been living in a Canadian Province for at least 1 year preceding the divorce, see s. 3(1) of the DA.

Things to Consider when Getting Divorced

Before getting divorced, it’s important to think about the following family matters:

  1. Custody and Access for children;
  2. Child and Spousal support;
  3. Property Division including things such as:
    1. Who gets the matrimonial home?
    2. How to split pensions;
    3. What happens to bank accounts?
    4. Who pays off any existing debts?

These issues can be dealt with in a separation agreement instead of through court which can save a lot of time and money. Judges will take separation agreements seriously and are unlikely to overturn items in the agreement unless there are deficiencies with the agreement or information was not disclosed (see our previous post on separation agreements for more information). Judges also have the ability to make decisions on the above noted matters before a divorce is finalized through Endorsements and Orders. It is best to speak to a lawyer regarding your rights and obligations to ensure that you are properly protected during the divorce process.

3 Different ways to Approach a Divorce

Depending on your particular circumstances, you have three options available to you should you wish to proceed with a divorce:

  1. General Application;
    1. This approach is taken when the parties cannot agree on how family matters should be resolved;
  2. Simple Application;
    1. You make this application where the ONLY THING you are claiming is a divorce;
  3. Joint Application;
    1. You can take this approach when both you and your ex spouse consent to a divorce and bring the application together;
    2. You can also bring a joint application where you both agree on all family matters.

What will I need to begin the Divorce Process?

This will depend on what type of application you bring. Different applications require different forms depending on your particular circumstances and what issues are contested between you and your ex spouse.  It is highly advised that you speak with a lawyer to determine which forms you will need to ensure you are properly protected. See this link for a list of Family court documents that you can review – http://ontariocourtforms.on.ca/en/family-law-rules-forms/.

One document that you will have to have is you marriage certificate. If your marriage certificate is in another language you will have to get it translated. If your spouse is deceased you will need proof of death.

Documents you generally need for a Divorce include:

  1. Form 8 Application;
  2. Form 6B Affidavit of Service;
  3. Form 36A Affidavit of Divorce;
  4. Form 25A Divorce Order.

If there are outstanding family matters that need to be deal with, you might also need the following:

  1. Form 13 or 13.1 Financial Statements if support or property are contested;
  2. Support Deduction Order;
  3. Form 35.1 Child Custody and Access.

 Is there a time limit for me to apply for a Divorce?

There are no time limits (what are called limitation periods) to apply for a divorce. Nor are there limitation periods to apply for child or spousal support. However, spousal support is based heavily on need; if you do not apply for spousal support for several years a judge may be inclined to see that you do not need support and may not grant it. Child support is the right of the child and courts will uphold this very strictly.  See our posts on spousal support and child support for more info.

Also, there is no limitation period on custody and access applications. You must be mindful of something called the status quo however. Judges do not want to disrupt a child’s stable home environment and are less likely to change it if their current situation has been in place for some time.

There are limitation periods for an equalization payment (see previous post for more information). These limits under s. 7(3) of the Family Law Act are as follows:

An application regarding an equalization payment cannot be brought after:

  1. 2 years after day of Divorce of annulment;
  2. 6 years after separation and there is not prospect they will resume cohabiting;
  3. 6 months after death of a spouse.

Do I need a Lawyer in order to get Divorced?

No. You can bring the application yourself, or jointly with your spouse without the aid of a lawyer. However, it is always best to seek the counsel of a lawyer specializing in family law to ensure all your rights are protected, ESPECIALLY when there are a lot of issues between you and your ex spouse that you do not agree on. Lawyers have the expertise with the law and court procedure to ensure that the divorce can move ahead as smoothly as possible.

Even if it is a simply divorce, having a lawyer support your through the process can greatly reduce stress and complications.

When does the Divorce actually take effect?

31 days after the date on which judgment granting the divorce is rendered, see s. 12(1) of the DA. Generally, this means you have to:

  1. Start the application by filing and issuing appropriate documents for divorce;
  2. Serve other party and wait to see if they respond (minimum of 30 days after serving your ex spouse);
  3. File the affidavit for Divorce and Divorce Order for the Judgment if no response from your ex spouse;
  4. Wait for Judge to provide the Judgment granting Divorce and to sign the Order;
  5. Wait 31 days after the date of the signed Order.

This process usually takes a few months but can be much longer depending on how litigious both parties are. If you are granted the Divorce, s. 13 of the DA states that it is effective across all of Canada.

Furthermore, s. 12(7) of the DA states that the court must provide you with a Divorce certificate if you request it that can be effective as of a specified date.

Can I change the Divorce Order?

Once that 31 day period after the Order is signed by the Judge passes the Divorce is final. However, this does not mean that you cannot revisit certain items such as custody, access, or support.  These items can always be changed should both parties consent to any changes or the court deems it just. This is because income can change, spouses may want to move or any other material change that may require a change to the arrangements in place at the time of divorce.

Contact our knowledgeable staff here at Rabideau Law to see how we can assist with any divorce or family law issues you may have.

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.

Canada's legalization of Cannabis Use: How will it affect family law?

Canada’s Legalization of Cannabis Use: How Will it Affect Family Law?

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Canada’s new Cannabis laws came into force October 17th, 2018, and it is important that persons who choose to consume the drug be aware of what the new laws allow (for a summary of some of the new laws see http://www.justice.gc.ca/eng/cj-jp/cannabis/).

Failure to properly understand the laws and what is permitted regarding possession, distribution, and consumption could cause complications not only for criminal reasons, but potentially family law reasons as well.  These complications could affect some family law issues such as:

  1. Custody and Access
  2. Residency
  3. Mobility

What does The Cannabis Act allow?

Individuals can now legally do the following:

  • possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form in public
  • share up to 30 grams of legal cannabis with other adults
  • buy dried or fresh cannabis and cannabis oil from a provincially-licensed retailer
    • in provinces and territories without a regulated retail framework, individuals are able to purchase cannabis online from federally-licensed producers
  • grow, from licensed seed or seedlings, up to 4 cannabis plants per residence for personal use
  • make cannabis products, such as food and drinks, at home as long as organic solvents are not used to create concentrated products

It is important to note that cannabis must be supplied from a legal source as described above.  Any illicitly acquired cannabis is not protected by the act and may result in penalties.  Furthermore, although edible products can be produced at home, they are not legal for sale for approximately one more year.

Youth and Cannabis

One of the purposes of The Cannabis Act (the “Act”) is to protect the youth from accessing cannabis.  As the Act provides, “No person may sell or provide cannabis to any person under the age of 18”.  This means that individuals cannot give or sell cannabis to youth, or use a youth to commit a cannabis-related offence.

Travel and Cannabis

Cannabis is still illegal in most of the United States.  Crossing the border without properly understanding these laws could create significant issues.  Also, each province is responsible for developing their own regulations regarding Cannabis such as:

  • increasing the minimum age in their province or territory (but not lowering it)
  • lowering the personal possession limit in their jurisdiction
  • creating additional rules for growing cannabis at home, such as lowering the number of plants per residence
  • restricting where adults can consume cannabis, such as in public or in vehicles

Pardons for Simple Pot Convictions

Now that individuals are allowed to possess up to 30 grams of legal Cannabis, Ottawa is moving to pardon those with a pot possession conviction of 30 grams or less (https://globalnews.ca/news/4558996/cannabis-pardons-simple-possession/).  However, those seeking the pardon will have to apply for one.

How might this affect Family Law?

Some questions that may be tested in the future regarding these new laws could include:

  1. Should a parent be allowed to exercise access visits at their home if they fall within the allowed possession or consumption laws? Would this be contrary to the purpose of the Cannabis Act to protect the youth?
  2. What happens if a parent owns illicit cannabis that was shared improperly between adults and contrary to the new laws? Would a judge factor this into any parenting arrangements?
  3. If a person had their parenting arrangements affected by a pot possession conviction, how could that change if their possession conviction is then pardoned?
  4. What if a parent tries to take the child across the border to the US or another province, but is found with legal marijuana in their possession? Would this be factored in negatively by a judge at any family law court proceedings?

Case law will be developed over time regarding Cannabis consumption and possession and how it can affect Family law issues.  We will be keeping an eye on how these and other issues will be interpreted by courts to ensure that we can provide you with up to date information on the issue.

 

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.

Rabideau Law Food Drive 2018

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We are proud to announce that we will be holding a Food Drive from November 1st-27th in support of The Food Bank of Waterloo Region, and in the spirit of GivingTuesday.

What is GivingTuesday?

As stated on the GivingTuesday website:
“It is a global movement for giving and volunteering, taking place each year after Black Friday. It’s a time when charities, companies and individuals join together and rally for favourite causes. In the same way that retailers take part in Black Friday, the giving community comes together for GivingTuesday.

GivingTuesday harnesses the potential of social media and the generosity of people around the world to bring about real change in their communities; it provides a platform for them to encourage the donation of time, resources and talents to address local challenges. It also brings together the collective power of a unique blend of partners – nonprofits, civic organizations, businesses and corporations, as well as families and individuals – to encourage and amplify small acts of kindness. Across Canada and around the world, GivingTuesday unites communities by sharing our capacity to care for and empower one another.”

To work our Food Drive in with GivingTuesday, we will be going to visit The Food Bank on November 27th to deliver the donations we have collected over the month.

Why should you donate?

• The Food Bank serves a Community Food Assistance Network of more than 80 agencies and community food programs. 2,000 meals are served daily by this Network.
• 49% of households seeking assistance are families with children.
• Just $1 will provide 3 meals.
• 215 food hampers are distributed every day.
• Community nutrition workers teach healthy eating and food budgeting skills at 16 different locations.
• 1 in 20 households in Kitchener-Waterloo are hungry.

How can you help?
• Make a donation
$20 will feed a family for 4 days
Tax refunds are available for donations
• Donate food
Most needed items include:

o Canned stews and chili
o Canned meat and fish
o Beans in sauce
o Pasta sauce
o Canned pasta
o Canned soup
o Canned fruit
o Dried beans
o Hot cereals
o Rice
o Peanut Butter

Donations will be accepted at our office, 501-305 King St W, Kitchener.

When making your donations, be sure to let us know whether your donation is in support of Geoff Rabideau or Roger MacIntosh’s teams!

If you have any other questions, feel free to contact Kayla at kkompter@rabideaulaw.ca